Court File and Parties
COURT FILE NO.: FS-13-77867-01 DATE: 2020 08 17
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHRISTINA CELESTE RAMOS LOPES Applicant
Counsel: Daniel R. Furlan, for the Applicant
- and -
MICHAEL JAMES GLOVER Respondent
Counsel: Self-Represented
HEARD: In writing
Reasons for Judgment
Fowler Byrne J.
[1] The Respondent Father Michael James Glover (“the Father”) has brought two motions in the course of his Motion to Change. Given the current suspension of regular court operations during the COVID-19 pandemic, the Father and the Applicant Mother Christina Celeste Ramos Lopes (“the Mother”) consented to these motions being heard in writing by myself. This consent was given on the explicit understanding that, although I am the case supervision judge, I will hear these motions and still preside over any further case supervision meetings and the final settlement meeting prior to the matter being tried.
I. Background
[2] On May 11, 2016, a final order was made by Tzimas J. following a trial management conference (“the Final Order”). The Final Order was made with the consent of the Mother and the Father and pursuant to signed Minutes of Settlement. It is a comprehensive order, but briefly, it provides that the Mother would have sole custody of the two children of the marriage, set out parenting time for both the Mother and the Father and made provisions for child support.
[3] On November 7, 2017, the Father commenced this Motion to Change a Final Order, namely the Final Order of Tzimas J. The changes sought were unclear, but it appeared the Father was seeking to change custody, as well as child support and the return of some of the monies he paid pursuant to the Final Order. On October 19, 2019, the Father brought a motion seeking extensive interim relief that, for the most part, would adjudicate most of the issues in the Motion to Change. Doi J. adjourned the motion to a long motion, returnable to August 5, 2020.
[4] It was subsequently determined by Regional Senior Justice Daley (as he was then) that a case supervision judge should be appointed, and the matter was referred to me on October 30, 2019. At the first case supervision meeting, the nature of the Father’s claims was clarified, and a schedule was put in place to allow for the Father to have various interim issues adjudicated prior to a settlement conference and then a trial. The August 5, 2020 date was accordingly vacated. Given that the children of the marriage are now over the age of 18 years, his claim for a change of custody was withdrawn.
[5] Unfortunately, although the parties were told to divide up these interim issues over two regular motions dates to ensure they could be argued within the time constraints of a regular motions day, only one motion was brought, which was clearly too lengthy to be argued, and the progress of this matter has stalled. The matter was then adjourned back to me for a further case supervision meeting, which took place on June 10, 2020. As indicated above, it was agreed that I would hear these interim matters in writing in the hope that the matter could still be tried in October of 2020.
II. Relief Sought
[6] As anticipated, the Father’s Notice of Motion sets out two main requests. The first is for the removal of Mr. Furlan, as well as any past or present members of his firm, as solicitor of record for the Mother by reason of a conflict.
[7] The second aspect of the Notice of Motion is an extensive request for significant disclosure which include the e-mails between the Mother and her prior counsel, various other e-mail accounts, server logs, back up logs of these email accounts, and the potential ability to conduct a complete forensic audit of these email accounts, the cost of which is to be born by the Mother’s counsel or the Mother herself.
[8] For the purposes of a complete record, I will detail the exact disclosure order sought:
(a) Disclosure to the court for its review, all e-mails between the Mother and her previous solicitor Corrine van der Burg between 2010 and 2016, and if it is determined that the e-mails qualify as possibly fraudulent or criminal in nature that they be released to the Father for these proceedings, to submit to the Law Society of Ontario or for any other manner he so wishes;
(b) Disclosure of “exchange server audit logs” of all the professional e-mail accounts of Ms. van der Burg;
(c) That Mr. Furlan, as counsel for the Mother, and Ms. Van der Burg, be required to log out of their e-mail account and remain so until the “IT forensic work” is done;
(d) That an IT professional be selected by the Father for any potential forensic audit of Ms.van der Burg’s e-mail accounts;
(e) The release of the mail server back up tapes, again referring to the e-mail accounts of Ms. van der Burg from 2010 to 2016;
(f) That Mr. Furlan bear the costs of producing these materials;
(g) Disclosure of all e-mails from the e-mail account abbycolclough9@gmail.com from the date it was created until January 2020;
(h) Disclosure of all e-mails from the e-mail account xtina@rogers.com that were tagged with the name “Circe Lyvette”, as per the email the Father received on May 13, 2017, or that were tagged with names other than her own;
(i) Disclosure of all e-mails between xtina@rogers.com and rongarao@hotmail.com be released to the Father;
(j) Disclosure of all e-mails between xtina@rogers.com and her counsel Ms. van der Burg “for the court to use as a check and balance against the emails provided by Mr. Furlan”;
(k) Disclosure of all e-mails between Ms. Van der Burg and John Fitzgerald, the Mother’s current spouse;
(l) Disclosure of all e-mails between Ms. Van der Burg and Robert Ongaro, the former spouse of the Father’s current spouse;
(m) An order that Google release emails (active and deleted) from the email account abbycolclough9@gmail.com through the Mutual Legal Assistance Treaties and that the Mother bear the cost of so doing; and
(n) An order that the Mother bear the cost of the “Rogers’ process”.
[9] The Father also requested that the Mother pay the costs of this motion in the sum of $17,500.
III. Analysis
A. Law of Disclosure
[10] The Father does not seek the usual financial disclosure related to his claim for a retroactive refund of the child support and s. 7 expenses paid to date. Instead, the Father seeks disclosure that will assist in his overall theory that the Mother conducted a campaign designed to paint him as an abuser, deny him custody of his children, and alienate him from his children. He also alleges that the Mother’s counsel participated in, or at least had knowledge of, this campaign. He seeks various damages as a result.
[11] Although full and frank disclosure is a fundamental tenant of the Family Law Rules, there is also an element of proportionality, common sense and fairness built into the rules. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process, are factors: Boyd v. Fields, [2006] O.J. No. 5762 at para. 12.
[12] With respect to the element of fairness, the court is to find guidance in the primary objective of the Family Law Rules, set forth in r. 2(2), which is to enable the court to deal with matters justly. What is just is addressed in r. 2(3): Boyd at para. 13.
[13] With respect to relevance, the fundamental question is whether the various items of information are relevant or whether they have a semblance of relevance given the material issues in the case: Boyd at para. 11. To determine the material issues, one must refer to the pleadings. The issues raised by the Father in his pleadings were confirmed in my endorsement of November 29, 2019:
(a) That child support payable by the Father to the Mother be terminated as of May 11, 2016;
(b) An order setting aside the Final Order on the basis of fraud or mistake;
(c) Reimbursement of funds paid by the Father for therapy;
(d) Reimbursement of monies paid by the Father for a trip to Las Vegas in January 2015;
(e) Reimbursement of all section 7 expenses paid by the Father to the Mother since May 2016;
(f) Refund of overpayment of child support;
(g) Reimbursement of part of the Father’s mortgage payments;
(h) Refunds of the settlement funds paid to the Mother pursuant to the Final Order for various arrears;
(i) Damages for intentional infliction of mental stress;
(j) Damages for harassment; and
(k) Damages for defamation.
[14] In considering the concepts of fairness and relevance, the court should consider the following:
(a) What burden do certain disclosure requests bring for the disclosing party?
(b) Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply?
(c) How does the disclosure request fit into the overall context of the case?
(d) Is the issue for which disclosure is requested a central issue in the case or peripheral?
(e) Does the cost of obtaining the disclosure outweigh the value of the issue in the case?
(f) Is there a more expeditious and cheaper way of getting the same information?
(g) As the case develops, is the disclosure still related to an important issue in the case?
Chernyakhovsky v. Chernyakhovsky, 2005 ONSC 6048, [2005] O.J. No. 944 at para. 8.
[15] Finally, while non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial: Boyd v. Fields, [2006] O.J. No. 5762 at para. 12. Also, while disclosure should be orderly and prompt, disclosure process cannot be used to cause delay or to reap tactical advantage: Chernyakhovsky v. Chernyakhovsky, 2005 ONSC 6048, [2005] O.J. No. 944 at para. 8.
B. Application to This Case
[16] For ease of reference, I have divided the requested disclosure into various groups:
(a) Communication between the Mother and her counsel, and communication between counsel and other potential witnesses, with necessary back up, such as Server Audit Logs and Mail Server Back up Tapes, and a forensic audit, as set forth in items 9(a), (b), (c), (d), (e), (f), (k), (l), (m) in the Father’s Amended Notice of Motion;
(b) Emails from the account abbycolclough9@gmail.com, as set forth in items 9(g), (n), (o) and (p) in the Father’s Amended Notice of Motion; and
(c) Various emails from the account xtina@rogers.com, as set forth in items 9(h), (i), (j).
1. Disclosure of solicitor-client communications
[17] The vast majority of the e-mail communication that the Father seeks, and the back up to support it, would require the Mother’s former lawyer, Ms. van der Burg, to produce communications that would otherwise be protected by solicitor-client privilege. In his Notice of Motion, the Father argues he is entitled to this information for three reasons: (1) because the Mother and her lawyer’s “fraudulent behaviour, criminal intent and intentional tortious activity fully exclude their right to declare privilege”; (2) the Mother has waived her privilege; and (3) in the interest of public safety.
a) Alleged Conduct of Mother and Counsel
[18] A court should be hesitant to order that solicitor-client privilege be waived and order that communications between a client and their lawyer be disclosed. As stated in R. v. McClure, 2001 SCC 14 at paras. 2 and 5:
[2] Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.
[5] …the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one.
[19] Clearly, the privilege only attaches to communications between the lawyer and client where the client is seeking lawful legal advice: McClure at para. 36. It may also be waived to give a defendant the ability to make a full answer and defence in a criminal proceeding: McClure at para. 38.
[20] There is no evidence presented, other than speculation or hearsay, that the Mother spoke to her lawyer for any other reason than to obtain lawful legal advice in the course of the proceedings. The Father has already made a complaint to the Law Society of Ontario alleging Ms. van Der Burg’s fraudulent or criminal behaviour, and no improper conduct was found. The Father is not defending himself in a criminal proceeding and, thus, does not need access to this file to support a criminal defence.
[21] Accordingly, no evidence has been presented that would suggest such conduct on the part of the Mother or her counsel that would exclude the application of such a fundamental protection as solicitor-client privilege.
b) Waiver
[22] Privilege will be considered waived when a party places their state of mind at issue and has received legal advice to help form that state of mind. Privilege will be deemed to have been waived with respect to that legal advice: Martin v. Giesbrecht Griffin, 2018 ONCJ 7794 at p. 6, citing Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108 (DC).
[23] I have reviewed the evidence submitted by the Father in support of that assertion and see no evidence of any such waiver. At no time has the Mother put her state of mind, or the legal advice she received in issue. I have reviewed the affidavit of Robert Ongaro, who gave affidavit evidence of what the Mother told him about her lawyer, and the affidavits of Father and his current spouse, who gave affidavit evidence about what Mr. Ongaro told them about these same conversations. In his affidavit, Mr. Ongaro used words such as “I believe” and “it is apparent to me” in reference to what the Mother told him. At no time did the Mother put the legal advice she received in issue. In addition, Mr. Ongaro swore that he never spoke to the lawyer directly, and always through the Mother as a “middleman”.
[24] I am not satisfied that the evidence shows that the Mother waived her solicitor-client privilege. Simply referring to her lawyer, or indicating what knowledge her lawyer may have, does not constitute a waiver of this privilege.
c) Public Safety
[25] Solicitor-client privilege may be set aside in rare circumstances in the interest of public safety. In determining if these circumstances exist, the court must consider three factors: First, is there a clear risk to an identifiable person or group of persons? Second, is there a risk of serious bodily harm or death? Third, is the danger imminent? Clearly if the risk is imminent, the danger is serious: Smith v. Jones, 1999 SCC 674, [1999] 1 SCR 455 at para. 77.
[26] In these circumstances, there are no identifiable group of people who are at risk. No one is at risk for death or serious bodily harm. There is no imminent risk to anyone that can be identified. Clearly, this is not a situation in which this exemption of solicitor-client privilege should be applied.
[27] In conclusion, there is no basis in which to order the production of any communication as between the Mother and her counsel.
2. Communications Between Counsel and Non-parties
[28] The Father also seeks copies of communications between Ms. Van der Burg and non-parties, such as Mr. Fitzgerald (the Mother’s current husband) and Mr. Ongaro, the former spouse of the Father’s current spouse.
[29] I have reviewed the affidavit evidence of Mr. Ongaro, sworn February 19, 2017. He indicated that all his communications with the Mother were by phone or e-mail. He also indicated that he has included as exhibits to his affidavit all e-mail communications with the Mother, under both abbycolclough9@gmail.com and xtina@rogers.com e-mail addresses. He swore that he had no direct communication with the Mother’s counsel. I have also looked through all the e-mails provided by Mr. Ongaro. There is no indication that the Mother’s counsel was a party to the e-mails. Given that it is Mr. Ongaro’s evidence that he never communicated directly with the Mother’s counsel, there is no basis on which to order this production.
[30] With respect to the production of communications between the Mother’s counsel and the Mother’s current partner John Fitzgerald, there are several difficulties. First, there is no evidence to support the existence of e-mail communication between Ms. van der Burg and Fitzgerald that did not include the Mother. Any such communications would be protected by solicitor-client privilege.
[31] Second, I am not convinced of the relevance of any such communication and whether it would assist the court is justly determining this case. Neither Fitzgerald nor Ms. van der Burg are parties to this litigation. Even with respect to the claims of intentional infliction of nervous shock, harassment or defamation, Fitzgerald and Ms. van der Burg are not a named respondents. The Father seeks no relief from them. Accordingly, any e-mails between Mr. Fitzgerald and Ms. van der Burg would have little probative value, is only peripheral to the main issues and will not assist this court in determining the Mother’s culpability in any of the issues.
3. Electronic Back-up of E-mail Communication
[32] The Father seeks an order for the release of “server audit logs” for the court to review, both which are subject to solicitor-client privilege, and those that are not. He claims that the audit logs do not provide the actual content of the email, but record account-based activity. These logs will apparently show if any emails have been deleted and would act as an “impartial check and balance against the emails provided to ensure the emails furnished to this court are in fact complete and correct”. He maintains no solicitor-client information will be divulged.
[33] He also requests the back up tapes as a further check and balance that all e-mail communications have been produced. He also requests that if there are any deleted emails between counsel and the Mother that a full forensic IT audit be ordered, at the Mother’s counsel’s expense, to be brought to the court for my review.
[34] Accordingly, the Father seeks not only full access to e-mail communication between the Mother and her counsel, but also requests the additional intrusion into the electronic back up of counsel’s computer to ensure that all relevant e-mails have been produced. The Father does not trust the Mother or her counsel to comply with any court ordered production.
[35] This relief sought by the Father is denied. First, having found that he is not entitled to any solicitor-client communication, he is also not entitled to the “impartial check”.
[36] Second, insufficient evidence has been provided that would warrant such an order. This issue has been addressed by Master Dash in the case of Nicolardi v. Daley. In that case, the Plaintiff/Moving party was suing his solicitor for negligence as a result of his representation in an earlier personal injury matter. Mr. Nicolardi asked the court, amongst other things, to give him access to the opposing party’s computer hardware for the purpose of determining whether relevant documents stored electronically have been omitted from production. In support of that motion, the moving party swore an affidavit indicating that not all documents had been delivered to him and pointed to specific correspondence that he knew to exist and were not disclosed: at paras. 2-3 and 16.
[37] Master Dash determined that given the nature of the claim as framed by the pleadings, the contents of his former solicitor’s file were relevant. Indeed, Mr. Nicolardi specifically pled that his former solicitor failed to produce all of his file documents. Master Dash then continued:
[29] …Where a party on proper evidence convinces the court that documents that have not been produced are likely stored on a computer's hard drive or other electronic storage medium, but the party in possession of the computer asserts it has printed and produced all that it has, then the only solution that would allow inspection of a document, would be inspection of the storage medium itself, in this case the firm's hard drive, with proper safeguards (emphasis mine).
[32] It will not be every lawsuit against a lawyer for negligence that will expose the lawyer's computer to inspection by his former client. Actions in which such inspection will be ordered are likely to be rare. Lawyers, perhaps more than other litigants, are aware of the duties imposed under the Rules to disclose all relevant documents and to produce all relevant documents that are not privileged. When a party swears in an affidavit of documents that he has produced all relevant documents in his possession, power or control, it would take convincing evidence to go behind that affidavit and order an investigation of the firm's computers. Such evidence can come by way of affidavit of the client (or other knowledgeable person), or by examination for discovery or cross examination of the lawyer on his affidavit of documents. The evidence must convince the court of a real likelihood that documents not disclosed in the lawyer's affidavit of documents exist or have once existed.
[33] It is not sufficient for a client to say in the course of a lawsuit, "I believe there are more documents," or "it appears to me that documents are being hidden." That would be no more than a fishing expedition.
[38] In the case before me, the Father failed to provide any evidence to show that other relevant emails exist. His request falls square in the nature of what Master Dash called a “fishing expedition”.
4. Emails from Account abbycolclough9@gmail.com
[39] Given the issues raised and the evidence produced to date, any e-mail communication between Mr. Ongaro and the Mother is relevant and should be produced. Unfortunately, there is conflicting evidence of whether any further communication exists. According to the affidavit of Robert Ongaro, whose evidence is presented by the Father, Mr. Ongaro has produced all e-mails exchanged between him and the Mother, using this email address. The Father maintains that the Mother said there were more that have not been produced. The Mother will need to clarify this, and an order will be made accordingly.
[40] With respect to the entire history of communication utilizing this email address, the request must be reviewed through the lens of fairness and relevance. It must be proportional. It is insufficient for a moving party to state that they believe there are more documents, or that it appears that documents are hidden. Evidence must be presented, and not mere speculation: see Zenex Enterprises v. Pioneer Balloon, 2012 ONSC 7243 at para. 13; Warman v. National Post Co., 2010 ONSC 3670 at para. 93.
[41] I have reviewed the evidence provided by the Father and, in particular, his affidavit of September 19, 2019. While he makes many allegations of the deceitful nature of the Mother, nowhere does he provide evidence that other relevant communication exists that utilizes this email address. He merely speculates that it does exist and wants production to support his speculation. Accordingly, the probative value of any such communication has not been established.
5. Request to Google to Release E-mails
[42] The Father seeks an order that Google provide all e-mails (active and deleted) from abbycolclough9@gmail.com from the date it was created until January 2020. The Father states that this can be accomplished using Mutual Legal Assistance Treaties (“MLAT”).
[43] Treaties between sovereign states require legislation to implement them domestically. The Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (“MLACMA”), is domestic legislation that implements various treaties or other arrangements on mutual legal assistance. It sets out the procedure for assistance and cooperation to help treaty partners in their detection and investigation of crime. Among other things, it provides ways for our treaty partners to obtain information from Canadian sources to assist in investigations undertaken by the treaty partner: Russian Federation v. Pokidyshev (1999), 1999 ONCA 3787 at paras. 15-16. Likewise, Canada could seek assistance from its treaty partners to assist in its investigation.
[44] There is currently no criminal investigation ongoing regarding any actions on the part of the Mother. The procedure suggested by the Father involves this government asking Google for production of these e-mails in the course of a criminal investigation. This request is not only disproportionate to the issues before me, but completely inappropriate.
6. Emails from Account xtina@rogers.com
[45] It is conceded that the email account xtina@rogers.com is the email account of the Mother. She has utilized this account for communication with the Father, Mr. Ongaro and her lawyer.
[46] Ownership and control of this email account though, does not mean that the entirety of its contents is relevant to the proceedings before the court. The probative value of the contents of the entire email account has not been made out.
[47] Obviously, email communication between the Mother and the Father is relevant, but this is accessible by the Father. No production order is necessary.
[48] With respect to the email the Father received from “Circe Lyvette”, this was still from the xtina@rogers.com address. For unknown reasons, the Mother identified herself as Circe Lyvette. This e-mail though, was addressed to the Father and he has access to it and any other e-mail in which the Mother may have identified herself as Circe Lyvette. The Father has not established any relevance of other e-mail communication in which the Mother identifies herself with this name. The Father also asks for an extensive request that any e-mails in which the Mother uses another name should be produced. Again, the relevance of any such e-mails has not been made out. No evidence has been presented that the Mother even used another name with this e-mail account.
[49] According to the affidavit evidence of Mr. Ongaro, sworn February 19, 2017, he has disclosed all communication with the Mother utilizing the xtina@rogers.com e-mail account. The affidavit evidence of Shawn Smith does not indicate that this email address was used.
[50] Any communication between the Mother and her lawyer that utilizes this account, is subject to privilege. No evidentiary basis has been established to show that the Mother’s other use of this e-mail account is relevant to these proceedings. Again, other than the Father’s suspicion that other relevant e-mails exist, no evidence has been presented that would support the relevance of probative value of other e-mail communication using this e-mail address.
C. Removal of Solicitor of Record
[51] The Father wants Mr. Furlan to be moved as counsel for the Mother. He also wants any member of Mr. Furlan’s firm disqualified from representing the Mother.
[52] The Superior Court of Justice has the inherent jurisdiction to determine, in a judicial manner, to whom it will give audience and may disqualify counsel by reason of conflict of interest or other juristic reason: MacDonald Estate v. Martin, 1990 SCC 32, [1990] 3 S.C.R. 1235 at p. 1245.
[53] In determining whether counsel should be disqualified, the court is concerned with at least three competing values. First, is the desire to maintain the high standards of the legal profession and the integrity of our system of justice. Second, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession: MacDonald at p. 1243. The third value addresses the situation when counsel change firms, which is not applicable in the case before me.
[54] One of the most common reasons to seek the disqualification of counsel is if there is a conflict of interest. In those cases, the court will remove that counsel if there is a possibility of real mischief. In these instances, “mischief” refers to the misuse of confidential information by a lawyer against a former client. This is because justice must not only be done, but also must manifestly be seen to be done: MacDonald at p. 1246.
[55] In the case before me, there is no allegation that Ms. van der Burg or Mr. Furlan ever acted for the Father, or any of the former spouses of the parties. It has also not been alleged that Mr. Furlan or Ms. van der Burg had available to them any confidential information related to the Father. Accordingly, there is no evidence of conflict of interest vis-a-vis the Father.
[56] Another possible reason for disqualifying a lawyer is if that lawyer will appear as a witness in the proceedings in which he or she acts. Not only is this contrary to the Rules of Professional Conduct, but it presents an inevitable conflict of interest of a lawyer who owes both a duty to his or her client, but also a duty of independence, as an officer of the court, on which the court will rely for a high degree of objectivity and detachment: Rice v. Smith et al., 2013 ONSC 1200 at para. 19.
[57] While the Father did not state in his motion that he wished to summon Ms. van der Burg or Mr. Furlan as a witness, he has alleged in his Notice of Motion that the Mother and Ms. van der Burg exchanged emails supporting a criminal fraud to obtain a favourable settlement and that both participated in reprehensible conduct in this regard. This would seem to imply that he would need Ms. van der Burg as a witness. If Ms. van der Burg was to be a witness at trial, that would disqualify Mr. Furlan was a result of their professional association.
[58] I am not satisfied at this time that Ms. van der Burg would necessarily be a witness at the trial of this Motion to Change. If the Father sought to call Ms. van der Burg, he would have to serve her with a Summons to Witness, which she could dispute. In determining whether she would have to testify, the court would have to be convinced that she had evidence that was admissible, highly material and necessary. In R. v. 1504413 Ontario Ltd., 2008 ONCA 253, the Ontario Court of Appeal stated at paras. 16-17:
[16] Whether as a matter of custom or policy, issuing a summons to counsel for the opposite party to testify against his or her client is virtually unheard of and it should not be done absent the most exceptional circumstances.
[17] At a minimum, such circumstances would require a showing of high materiality and necessity (assuming that the proposed evidence is otherwise admissible) [See Note 1 below] Although not exhaustive, necessity in this context will involve considerations such as the importance of the issues for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence or other means by which it may be accomplished (such as the filing of an agreed statement of fact), the potential disruption of the trial process and the overall integrity of the administration of justice.
Note 1: Manifestly, solicitor/client privilege will figure significantly on the issue of admissibility.
[59] It is not enough then, to merely suggest that a lawyer may be a witness in a proceeding. The Father bears the onus of showing the evidence of Ms. van der Burg would be admissible, highly material and necessary. The court is not to accept the “lawyer as witness” conflict of interest and prohibition as an absolute rule.
[60] The Father has not convinced me that any evidence that Ms. van der Burg could offer the court, if she is called as a witness, is even admissible. It is all too common in family law proceedings, that when matters become particularly heated, that blame or hostility is directed not already to the opposite party, but to their counsel. A party’s dissatisfaction of a result, no matter how justified, does not entitle that party to dive into the solicitor-client relationship of the other party, take apart the instructions given and steps taken and disqualify that lawyer in order to ascertain if something untoward or inappropriate occurred. There is simply no direct or compelling evidence in this case that anything inappropriate occurred that should result in the lawyer being removed as counsel of record – only speculation on the party of the Father and those who support him in this request.
[61] I am also not convinced that Ms. van den Burg’s evidence is necessary. They are no allegations that Ms. van den Burg was present at any meeting or took any actions, that were not in concert with the Mother and in the course of providing legal advice. Ms. van der Burg has no independent evidence to offer. In order to succeed at trial, the Father must show that the Final Order should be set aside and that the monies paid returned to him because the Mother obtained the order by fraud, or that the Mother intentionally inflicted mental stress on the Father, or harassed or defamed the Father. The Mother’s conversations with her lawyer are insignificant provide none of the essential element of any of these claims.
[62] I am also concerned about the Father’s motivation in seeking to remove Mr. Furlan or any member of his firm as counsel for the Mother. If a motion is brought with the intention of frustrating or delaying one’s opponent or to otherwise secure a tactical advantage in the court of litigation, the motion should be dismissed: Moffat v. Wetstein at para. 131; N.M. Davis Corporation Limited v. Ross, 2012 ONSC 1697 at para. 13.
[63] As indicated, the Mother has provided evidence that the Father has already reported Ms. van den Burg to the Law Society of Ontario, alleging professional misconduct. The Law Society of Ontario concluded that there was no reasonable suspicion that Ms. van der Burg engaged in professional misconduct and the file was closed. The Father also reported the Mother’s current spouse to his governing body, the Chartered Professional Accountants of Ontario, accusing him of harassment. They found no evidence of harassment and no breach of their professional rule of conduct. The Father has also brought a human rights complaint as against the Peel Children’s Aid Society. This complaint was dismissed at a preliminary stage as it was plain and obvious that the application did not fall within its jurisdiction. The Father has also brought a proceeding in the Small Claims Court against the Mother, alleging much of what is alleged in these proceedings. This action was dismissed, and a release was signed.
[64] The Father is steadfast in his determination to set aside the Final Order that he consented to in 2016. He has launched several collateral attacks on the Order, without success. This request, to force the Mother to obtain new counsel after many years of litigation, appears to be another type of collateral attack on the Final Order.
[65] Accordingly, I see no basis on which to disqualify Mr. Furlan, or any member of his firm, as counsel of record for the Mother. This is without prejudice to the Father raising the issue again in the event that further evidence arises that shows the evidence of Ms. van der Burg to be admissible, highly material and necessary.
IV. Conclusion
[66] For the foregoing reasons, I make the following orders:
(a) On or before August 28, 2020, the Mother must produce all e-mail communication herself and Robert Ongaro, from the email account abbycolclough9@gmail.com and xtina@rogers.com, whether or not it has already been produced by the Father; if any further e-mail communication between the Mother and Robert Ongaro existed but is no longer available, the Mother is to provide an affidavit outlining the reason why other communication is not available; if any further communication with Mr. Ongaro was deleted, the Mother shall make best efforts to recover the deleted emails, and if not able to do so, to provide affidavit evidence as to the steps she took to recover this communication;
(b) Paragraphs 12 of my endorsement dated June 11, 2020 is set aside and replaced with the following:
- On or before September 4, 2020, the Father shall deliver to the Applicant’s counsel the following:
A list of all witnesses he intends to call at trial and a summary of the evidence that the witness is anticipated to give; and
A sworn affidavit of documents listing all the documents on which he intends to rely at trial, and a copy of those documents, at his expense;
- On or before September 11, 2020, the Mother shall deliver to the Father the following:
A list of all witnesses she intends to call at trial and a summary of the evidence that the witness is anticipated to give; and
A sworn affidavit of documents listing all the documents on which she intends to rely at trial, and a copy of those documents, at her expense;
(c) This matter is adjourned to a combined settlement conference and trial management conference, fixed for October 13, 2020 at 2:30 p.m. to be conducted by Zoom videoconference; conference invite to follow; the parties are to serve and file Settlement Conference Briefs and Trial Scheduling Endorsement Forms as per the Family Law Rules;
(d) Each party is to serve and file their written submission on the costs of this motion on or before 4:30 p.m. on August 28, 2020; each party may serve and file responding submissions on or before 4:30 p.m. on September 11, 2020; all written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca, and directed to my attention. No submissions may exceed 10MB.
(e) The remainder of the Father’s motion is dismissed.
Fowler Byrne J.